European Legal (In)Action and the Ukraine Crisis

While political responses, dispersed with rhetoric flourishes, continue to be dispensed by European leaders reacting to the sustained crises that follow from Russian annexation of Crimea and ongoing Russian support to rebel groups in Eastern Ukraine, some concrete legal action is also being taken through Council of Europe (CoE) and European Union (EU) mechanisms. It’s worth examining those measures and assessing their their implications for advancing EU and CoE’s capacity to deal with breaches of and challenges to their foundational treaties.

Both systems want to maintain their relevance and legitimacy over and above the political noise. Yet the prospect of meaningful influence for the EU and the CoE remains elusive, if for differing reasons. Both systems are struggling to respond adequately, robustly, and consistently to the challenges of sovereignty breaches, territorial fracture, sustained armed conflict, and unexpected annexation on European territory.

The CoE and the EU were created in response to two devastating and sequential wars on the European continent and designed in part to prevent the recurrence of conflict. Thus, the Preamble to the Treaty of Rome affirms the resolve of the six founding states to:

… lay the foundations of an ever closer union among the peoples of Europe … Resolved to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe … Intending to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations … Resolved by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,

In parallel, the Preamble to the European Convention on Human Rights affirms:

… that the aim of the Council of Europe is the achievement of greater unity between its Members and that one of the methods by which the aim is to be pursued is the maintenance and further realization of Human Rights and Fundamental Freedoms.

Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.

The lofty ideas underpinning both treaty regimes have experienced sustained challenge since annexation and conflict have come to define Ukraine and Russia’s relationship with Europe. 

The European Union’s Response to the Crisis

The EU has taken a motley set of actions responding to events in Ukraine, combining general support for Kiev and targeted sanctions directed at individuals viewed as responsible for violations of Ukraine’s sovereignty. Early in February 2014, the EU published a fact sheet on EU/Ukraine relations, and its various institutions have issued multiple press releases discussing actions taken in response to Russia’s aggression. The Union’s High Representative represented the Union at the March 17, 2014 Geneva Agreements and remains engaged in political negotiations on the crisis. Despite the EU’s rhetoric and actions, ongoing violence in Eastern Ukraine undermines the effectiveness of the Geneva Agreements and underscores the ongoing weakness of the EU and European states in their mediation, negotiation, and deterrent efforts. This motif has remained consistent through 2014 until now.

In February 2014, Štefan Füle, the European Commissioner for Enlargement and European Neighbourhood Policy, outlined the EU responses to the Russian action in Ukraine. This framework remains broadly intact and includes:

1) Taking Diplomatic Action. The EU’s ongoing efforts (with the Organisation for Security and Co-Operation in Europe and other states) are directed at engaging and sustaining talks with Ukraine, Russia, and the US aimed at underscoring Ukrainian sovereignty. The EU continues to support an OSCE monitoring mission and has given ongoing assistance to the OSCE monitors on the ground.

2) Articulating EU Opposition to Russian Annexation of Crimea. The EU has enacted sanctions, including asset freezing and visa bans, on a relatively small group of individual leaders it identifies as responsible for the violations of Ukraine’s sovereignty. The EU steadfastly maintains that sanctions will be maintained until the Ukraine peace agreement(s) have been fully implemented. The Union has also threatened more wide ranging economic sanctions if Russia continues to destabilize the region.

3) Formal Refusal to Recognize the Annexation of Crimea. After creating an official non-recognition policy towards Crimea’s annexation, the EU is in the process of establishing the ongoing “practical parameters” of the policy including entrenching various restrictive trade and political measures.

4) Commitment to political and financial support for Ukraine. The EU signed the political chapters of an Association Agreement for Ukraine on March 21, 2014, and adopted trade arrangements that allowed greater access to Ukrainian exports into the EU’s internal market. In terms of further support and cooperation, the EU has said it plans to invest 11 billion euros over the next few years and remove customs duties on Ukrainian exports to the EU. It is also clear that political, security, and economic reforms (including rule of law, anti-corruption, and transparency) remain a priority for the EU within Ukraine itself, tasks that may have taken a back seat in the immediate aftermath of annexation and aggression, but continue to plague the domestic political landscape in Ukraine and will be a significant hurdle if Ukraine is to meet the accession criteria to the Union.

5) Energy security. The EU has (belatedly) recognized its dependence on Russian oil. The European Commission completed a study in May 2014 on EU energy dependence and security, and is now advancing a European Energy Security Strategy which seeks to diversify external energy supply and to lessen dependence on Russia.

Geneva Agreements

The April 17, 2014 meeting in Geneva between the EU, US, Ukraine, and Russia lead to a series of agreements with the aim of de-escalating the conflict. These initial steps include all sides avoiding “any violence, intimidation or provocative actions.” The agreement called for the disarmament of all illegal groups, and the return of all illegally seized buildings and public places, and amnesty for all who abide by those terms. The OSCE Special Monitoring Mission took the lead in de-escalation with US, EU, and Russian support. The Agreements also include a commitment to an “inclusive, transparent and accountable” constitutional process. It was notable that the Geneva Agreements did not contain any provisions concerning Crimea, the mechanisms that would enable constitutional change, elections, and failed to address Russian demands that any new constitution provide for increased autonomy of individual regions. Ongoing violence in Eastern Ukraine between security forces and armed rebels in Slavyansk almost immediately called into question the effectiveness of the Geneva Agreements and the overall approach to negotiation, implementation and monitoring of the peace efforts. All sides claimed breaches and Russia initiated military drills on the Ukrainian border in response.

As violence has continued and escalated, and the effects on civilians become more pronounced, the EU has become more vocal in its condemnation of Russia. On January 29, 2015 the European Council condemned the shelling of residential areas in Eastern Ukraine, especially in Mariupol, and the escalation of violence in Donetsk and Luhansk. The Council remains seized of the humanitarian situation in the Donbas region, and has been rhetorically forceful (to limited effect) about the lack of access for humanitarian supplies to the territory. The European Council maintains that there is ample evidence of the material support being given to the separatists by Russia. The Council consistently affirms that it is Russia’s responsibility to exert influence over separatist forces and enforce the Minsk agreement signed on September 5, 2014. This political settlement initiative included ceasefire arrangements, verification processes, an OSCE managed buffer zone on the Russia-Ukraine border, prisoner releases, amnesties and the dispensing of humanitarian aid in conflict affected regions. Disputed implementation remains the order of the day regarding cessation of hostilities and withdrawal of heavy weapons from the security zone.

On March 31, 2015 the Council adopted a measure providing up to 1.8 billion euros in additional microfinance assistance to Ukraine. The assistance is subject to a memorandum of understanding (MOU) to be agreed between the European Commission and Ukraine. The MOU will lay down highly specific economic policy and financial conditions focusing on structural reforms and sounds public finances. This MOU underscores continued EU concern about the extent to which Ukraine is producing the economic and rule of law conditions to meet the criteria for accession to the EU, as well as to transition effectively from conflict to reconstruction and functionality.

In one view, the crisis in Ukraine has reached a stalemate. The Belarus ceasefire brokered by Ukraine, Russia, Germany, and France in February 2015 is still (tentatively) in force but deaths are still reported daily among Ukrainian soldiers, civilian and rebels. Huge parts of the industrial region of eastern Ukraine, including Donetsk and Luhansk, remain under the effective control of rebels forces. The status of the eastern region, proclaimed “the people’s republics” by the separatists remains disputed internally but unrecognized externally. Many of the substantive elements of every attempt to agree and enforce a comprehensive political settlement remain unenforced or under-enforced. We can only assume that this pattern of incomplete and inadequate enforcement will remain true, if the approach of Russia to other conflict management zones within its influence or control (Georgia and Chechnya) are relevant precedent. The unanswered question remains what the EU and its most powerful states will do in response and what means are at their disposal to force a greater degree of Russian co-operation (if not compliance) to a now frozen conflict that exerts extra-ordinary influence on the region and undermines the institutional and political power of the Union. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).